Moran Transp. Corp. v. Stroger, 1-97-2061

• Decision Date: 05 March 1999
• Docket Number: No. 1-97-2061,1-97-2061
• Citation: 303 Ill.App.3d 459,236 Ill.Dec. 922,708 N.E.2d 508
• Parties: , 236 Ill.Dec. 922 MORAN TRANSPORTATION CORPORATION, Plaintiff-Appellant, v. John H. STROGER, Jr., President of the Cook County Board of Commissioners, Barbara Bruno, Director of the Cook County Department of Revenue, and the County of Cook, Defendants-Appellees and Cross Appellants (Dolphin Cartage Inc., and Donald J. Griffin, Indi., and On Behalf of All Other Persons and Corporations Similarly Situated, Plaintiffs-Appellants and Cross Appellees; The County of Cook, a body politic, John Stroger, Jr. in his capacity as President of the Cook County Board of Commissioners; Edward Rosewell, in his capacity as Cook County Treasurer, David D. Orr, in his capacity as Cook County Clerk and Cook County Board Commissioners and Sandra K. Williams, Jerry Butler, Allan C. Carr, John P. Daley, Danny K. Davis, Barclay Fleming, Carl R. Hansen, Ted Lechowicz, Roberto Maldonado, Joseph Mario Moreno, Maria Pappas, Herbert T. Schumann, Jr., Richard A. Siebel, Peter N. Silvestri, Deborah Sims, Bobbie L. Steele, and Calvin Sutker, Defendants-Appellees and Cross Appellants).
• Court: United States Appellate Court of Illinois

Page 508

708 N.E.2d 508

303 Ill.App.3d 459, 236 Ill.Dec. 922

MORAN TRANSPORTATION CORPORATION, Plaintiff-Appellant, v. John H. STROGER, Jr., President of the Cook County Board of Commissioners, Barbara Bruno, Director of the Cook County Department of Revenue, and the County of Cook Defendants-Appellees and Cross Appellants (Dolphin Cartage Inc., and Donald J. Griffin, Indi., and On Behalf of All Other Persons and Corporations Similarly Situated Plaintiffs-Appellants and Cross Appellees; The County of Cook, a body politic, John Stroger, Jr. in his capacity as President of the Cook County Board of Commissioners; Edward Rosewell, in his capacity as Cook County Treasurer, David D Orr, in his capacity as Cook County Clerk and Cook County Board Commissioners and Sandra K. Williams, Jerry Butler Allan C. Carr, John P. Daley, Danny K. Davis, Barclay Fleming, Carl R. Hansen, Ted Lechowicz, Roberto Maldonado, Joseph Mario Moreno, Maria Pappas, Herbert T. Schumann, Jr., Richard A. Siebel, Peter N. Silvestri, Deborah Sims, Bobbie L. Steele, and Calvin Sutker, Defendants-Appellees and Cross Appellants).

No. 1-97-2061.

Appellate Court of Illinois, First District, Sixth Division.

March 5, 1999.

Richard A. Devine, State's Attorney of Cook County, Chicago (Assistant State's Attorneys Patricia A. Shymanski, Thomas M. Burnham and Sanjay T. Tailor, of counsel), for Appellees.

Abramson & Fox, Chicago (William D. Brejcha, of counsel) and Madler & Peldyak, Chicago (Paul Peldyak, of counsel), for Appellants.

Justice QUINN delivered the opinion of the court:

This appeal involves a challenge to the constitutionality of the Cook County Retail Sale of Gasoline and Diesel Fuel Tax Ordinance (the Ordinance), enacted as an amendment to the Gasoline Tax Ordinance. Cook County Ordinance § 97-0-3 (eff. January 1, 1997). Plaintiffs Moran Transportation Corporation, the Illinois Trucking Association, Dolphin Cartage Inc., the Chicago Regional Trucking Association and Donald Griffin, individually and as representatives of a class of persons similarly situated, brought this action in the circuit court of Cook County seeking declaratory and injunctive relief. Defendants John Stroger, president of the Board of Commissioners of Cook County, and various members of the Cook County Board of Commissioners filed a motion to dismiss plaintiffs' complaints for declaratory and injunctive relief pursuant to sections 2-615 and 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-615, 2-619 (West 1996)). The circuit court dismissed plaintiffs' complaints. On appeal, plaintiffs contend that: (1) the trial court erred in finding that plaintiffs lacked standing to attack the constitutionality of the Ordinance; (2) the trial court erred in finding that certain trial testimony clearly established the constitutionality of the Ordinance; (3) the trial court erred in giving consideration to inadmissible hearsay testimony; (4) the specific terms and provisions of the Illinois Motor Fuel Tax Law establish that the Ordinance's undefined exemptions render it unconstitutionally vague; (5) the Ordinance's railroad locomotive fuel exemption renders it unconstitutionally vague; (6) the trial court wrongly rejected plaintiffs' uniformity clause claim; (7) the trial court wrongly rejected plaintiffs' special legislation and equal protection attack upon the Ordinance; and (8) the jet fuel provisions of the Illinois Motor Fuel Tax Law (35 ILCS 505/1 et seq. (West 1996)) and plaintiffs' offer of proof concerning jet fuel combine to establish that the Ordinance is unconstitutionally vague.

For the reasons that follow, we affirm the dismissal of plaintiffs' complaints.

In 1976, Cook County enacted the Gasoline Tax Ordinance, which imposed a tax of six cents per gallon on the retail sale of gasoline. Diesel fuel sales were not subject to taxation under the ordinance. In November and December 1996, the Cook County Retail Sale of Gasoline and Diesel Fuel Tax Ordinance was enacted by the Cook County Board of Commissioners, amending the Gasoline Tax Ordinance to include a tax of six cents per gallon on the retail sale of diesel fuel in Cook County effective January 1, 1997. Cook County did not issue regulations to assist in the construction of the Ordinance. The Ordinance provides, in relevant part:

"Section 1:

* * *

(b) 'Diesel fuel' means any petroleum product intended for use or offered for sale as a fuel for engines in which the fuel is injected into the combustion chamber and ignited by pressure without electric spark. This definition does not include home heating oil or railroad locomotive fuel.

(c) 'Distributor or Supplier' means a person who either produces, refines, blends, compounds, or manufactures gasoline or diesel fuel in this County or transports or has transported gasoline or diesel fuel into this County or receives gasoline or diesel fuel in Cook County on which this tax has not been paid.

(d) 'Retail Dealer' means any person who engages in the business of selling gasoline or diesel fuel in this County of Cook to a purchaser for use or consumption and not for resale in any form.

Section 2. Tax Imposed.

(a) A tax is hereby imposed on the retail sale in Cook County of gasoline and of diesel fuel at the rate of six (6) cents per gallon or fraction thereof. Such tax is to be paid by the purchaser and nothing in this Ordinance shall be construed to impose a tax upon the occupation of distributors suppliers or retail dealers." Cook County Ordinance, effective January 1, 1997.

The Ordinance imposing the diesel fuel tax was one of three revenue-enchancement measures enacted to fill a projected fiscal operating deficit of $123 million in the Cook County budget. The projected revenue from the diesel fuel tax, estimated at $11 million in 1997, was to be directed into the Cook County public safety fund. The Cook County public safety fund funds operations of the Cook County sheriff's police department, the Cook County State's Attorney office, the Cook County Department of Corrections, the clerk of the circuit court of Cook County and the office of the chief judge of the circuit court of Cook County. The Cook County public safety fund does not fund highway maintenance.

On December 20, 1996, the Chicago Regional Trucking Association (CRTA), Dolphin Cartage, Inc. (Dolphin), and Donald Griffin (Griffin) filed a class action lawsuit against Cook County and various Cook County Board commissioners, seeking to enjoin the assessment and collection of the diesel fuel tax. CRTA is a motor carrier association whose members operate diesel-fueled motor vehicles and purchase and consume diesel fuel in Cook County. Dolphin operates diesel fuel motor vehicles and purchases and consumes diesel fuel in Cook County. Griffin purchases diesel fuel in Cook County on a regular basis for a privately owned Mercedes Benz that he uses for his personal transportation with the consent of the vehicle owner.

On December 23, 1996, the Illinois Transportation Association, Inc. (ITA), and Moran Transportation Company (MTC) also filed a class action lawsuit, seeking to enjoin the diesel fuel tax. ITA, primarily comprised of trucking companies, is an educational and legislative association dedicated to ensuring that its members comply with government regulations and conducting lobbying efforts on behalf of the trucking industry. MTC is a motor carrier company. Both suits were consolidated before the tax and miscellaneous remedies section of the circuit court of Cook County. In their respective complaints for a temporary restraining order and preliminary and permanent injunctive relief, plaintiffs alleged that although the Ordinance included an exemption for railroad locomotive fuel, there was no such exemption for trucking companies or for individuals who buy diesel fuel for their personal transportation. Plaintiffs further alleged that by failing to apply the diesel fuel tax "across the board" and favoring select groups by exempting them from the tax, the Cook County Board created an unconstitutional ordinance. Plaintiffs also alleged that unless the trial court enjoined the Ordinance, plaintiffs and the class would suffer irreparable harm.

On December 31, 1996, after a hearing on plaintiffs' motions for a temporary restraining order against enforcement of the tax, the trial court allowed defendants to collect the diesel fuel tax but ordered them not to use the tax proceeds.

On January 2, 1997, plaintiffs filed a joint motion to certify the lawsuit as a class action. The motion alleged that plaintiffs brought the action as a class action to represent the interests of all motor carriers affected by the diesel fuel tax.

On January 7, 1997, defendants filed a motion to dismiss, asserting that certain defendants were not proper parties, that ITA and CRTA lacked standing and that plaintiff ITA's complaint was factually and legally insufficient on all counts.

On January 15, 1997, the trial court granted defendants' motion to dismiss. The court also dismissed plaintiffs ITA and CRTA for lack of standing, finding that, as associations, ITA and CRTA did not purchase diesel fuel themselves and could not bring a lawsuit on behalf of their membership. Plaintiffs' special legislation, equal protection, due process, uniformity and commerce clause counts were dismissed as facially and legally insufficient. The court further granted nonassociation plaintiffs MTC and Dolphin leave to file new amended complaints. Defendants were further restrained from using any proceeds of the diesel fuel tax, which were to be held in escrow through January 29, 1997.

MTC filed its third amended complaint on January 21, 1997. Dolphin and Griffin filed their second amended complaint on January 22, 1997. Both complaints alleged that the Ordinance violated the uniformity, equal protection, special legislation and due process clauses of the Illinois Constitution (Ill. Const.1970, art. 9, § 2, art. 1, § 2, art....